Opinion
Criminal Action No. 97-360, Section "R"
July 8, 2002
ORDER AND REASONS
Before the Court is petitioner's motion to disallow the collection of restitution. For the following reasons, the Court denies the motion.
I. Background
Michael Coleman pleaded guilty to one count of bank robbery, in violation of Title 18 U.S.C. § 2113. On May 27, 1998, the Court sentenced petitioner to 96 months imprisonment and it ordered him to pay a special assessment of $100.00 and restitution of $6300.00 to the Hibernia National Bank. The Court further ordered that the payment of restitution "shall begin while defendant is incarcerated." Petitioner is incarcerated in a federal penitentiary in Lompoc, California.
Petitioner contends that the Court improperly delegated its judicial authority to establish a schedule of restitution payments to the Bureau of Prisons (BOP). Petitioner asks the Court to issue an order directing the Bureau of Prisons (BOP) to cease collecting restitution from him and to issue an order deferring the balance of the payments owed until the beginning of his term of supervised release. In the alternative, petitioner asks the Court to amend his payment schedule.
II. Discussion
The Court will construe petitioner's motion as a petition for writ of habeas corpus under 28 U.S.C. § 2241 because petitioner challenges the execution of his sentence. See United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992) (challenge to execution of petitioner's sentence should be filed as a writ of habeas corpus under 28 U.S.C. § 2241) (citing United States v. Gabor, 905 F.2d 76, 77-78 (5th Cir. 1990)); United States v. Garcia-Gutierrez, 835 F.2d 585, 586 (5th Cir. 1988); see also Sanchez-Quintana v. Davis, 2001 WL 1397316, *1 (E.D. La. 2001). In order to entertain jurisdiction over a Section 2241 habeas petition, the federal district court must have jurisdiction over the petitioner or his custodian when the petition is filed. Gabor, 905 F.2d at 78 (citing Blau v. United States, 566 F.2d 526, 527 (5th Cir. 1978)); McClure v. Hopper, 577 F.2d 938, 939- 40 (5th Cir. 1978), cert. denied, 439 U.S. 1077, 99 S.Ct. 854 (1979). Accordingly, a petitioner must file his habeas petition in the federal district in which he is physically present. Id. Here, it is undisputed that petitioner filed this petition from the federal penitentiary in Lompoc, California, which is not located in the Eastern District of Louisiana. Therefore, the Court finds that it does not have jurisdiction to afford petitioner the relief he seeks. Additionally, the petition is not properly before this Court because Coleman has not shown that he has exhausted his administrative remedies. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (quoting Gabor, 905 F.2d at 78 n. 2) (a Section 2241 petitioner "must first exhaust his administrative remedies through the Bureau of Prisons"); see also Lundy v. Osborn, 555 F.2d 534, 534-35 (5th Cir. 1977) ("[G]rievances of prisoners concerning prison administration should be presented to the Bureau [of Prisons] through the available administrative channels. Only after such remedies are exhausted will the court entertain the application for relief in an appropriate case.") (citations omitted).
See Government's Ex. 2 (Declaration of Michael Flagor, Paralegal Specialist, BOP, Federal Correctional Institute, Oakdale, Louisiana).
III. Conclusion
For the foregoing reasons, the Court DENIES petitioner's motion.